INTESTACY: TO DIE WITHOUT A WILL

2 March 2020 / By Joseph Layne 

Knowledge…Shared…Multiplies

Do you know what is meant when it is said that a person died intestate? It means that they died without leaving a will or valid will. I recently had the opportunity to explain some aspects of the law of intestacy to Jeffery Joffre. He approached me to discuss the situation with his father’s estate. He told me that his father, William Joffre, had five children but in his will he left his house, located in Lance Aux Epines, to him. Jeffery considered that fair and just since he was the one who looked after his father, in particular in the last 10 years or so of his life. He spent his own money doing so and also spent money to assist his father to maintain the house. However, since Jeffery’s father died, confusion started and some of his siblings have questioned the validity of the will.

An invalid will means no will equals intestacy

On further discussion with Jeffery, he revealed that though his father wrote out the will and signed it, it was never witnessed. Upon saying that, Jeffery saw the visible change on my face. He inquired as to what I was thinking. I told him that even if his father signed the will but it was not witnessed it was just as if he did not make a will. He wanted to know what would happen in that case.

Before answering, I asked Jeffery if his father was married. He told me yes but he and his wife, Amy, (who is not Jeffery’s mother) were separated many years ago. I asked if they were divorced. They were not, they just went their separate ways. After I received what I considered all the pertinent information, I told Jeffery that since his father did not make a valid will, he is considered to have died intestate.

Rules of Intestacy

If a person dies testate i.e. having made a will then their estate is to be distributed in accordance with their wishes as set out in their will.

However, if a person does not make a will or a valid will they are said to have died intestate and it is left up to the State through the formulae contained in the Intestates Estates Act to determine how their estate is distributed.

Before the estate of an intestate can be distributed, someone, determined by a formula in the English Non Contentious Probate Rules 1987, would be appointed administrator of the estate. First in line to be appointed is a surviving spouse. It is that person, the Administrator or Administratrix (if it is a female), who is responsible for administering the estate.

One of the first obligations of the administrator is to pay the debts owed by the estate. After debts are paid the remainder of the estate is distributed among the beneficiaries of the estate.

First in line to benefit is a surviving spouse and children. If the intestate is survived by a spouse and children, after debts are paid, 50% of the remainder of the estate goes to the spouse and the other 50% is divided equally between the children.

Up until 1991 and the passage of the “Child is a Child Act” only so called “legitimate children” were entitled to inherit under intestacy. Children born out of wedlock had no rights of inheritance. However, every child is now equally entitled to inherit.